Wednesday, March 31, 2010


THE HAGUE, Mar 31 - The International Criminal Court (ICC) on Wednesday gave the green light for a full-scale probe by its prosecutor of the deadly violence that followed Kenya's 2007 presidential election.

"The chamber, by majority, hereby authorises the commencement of an investigation into the situation in the Republic of Kenya in relation to crimes against humanity," the court said in a written decision which was posted on ICC’s website.

"The information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory," the written ruling said.

Prosecutor Luis Moreno-Ocampo asked the judges last November to allow him to probe the violence that claimed about 1,500 lives, injured thousands and left about 300,000 internally displaced following elections on December 27, 2007.

The ruling said the prosecutor had contended the crimes committed in Kenya at the time had amounted to crimes against humanity.

Earlier this month, Mr Ocampo gave judges 20 names of "senior political and business leaders”, whom he said organised, enticed and/or financed attacks against the civilian population on account of their perceived ethnic and/or political affiliation.

In the decision, the court said: “The majority finds that upon examination of the available information, bearing in mind the nature of the proceedings under Article 15 of the Statute, the low threshold applicable at this stage, as well as the object and purpose of this decision, the information available provides a reasonable basis to believe that crimes against humanity have been committed on Kenyan territory.”

“The majority moreover found that all criteria for the exercise of the Court’s jurisdiction were satisfied, to the standard of proof applicable at this stage,” the ruling said.

It went on to state: “The majority therefore granted the Prosecutor’s request, and allowed him to commence an investigation covering alleged crimes against humanity committed during the events that took place between June 1, 2005 (i.e the date of the Statute’s entry into force for the Republic of Kenya) and November 26, 2009 (i.e the date of the filing of the Prosecutor’s Request).”

The judge with a dissenting opinion Hans-Peter Kaul held that the crimes committed in Kenya did not qualify as crimes against humanity under the jurisdictional ambit of the Statute.

In particular, Judge Kaul disagreed with the majority on the requirements of a “State or organisational policy” as set out in Article 7(2)(a) of the Statute. Given the fact that the fundamental rationale of crimes against humanity as codified in Article 7 of the Statute was to protect the international community against the extremely grave threat emanating from such policies, Judge Kaul concluded that it had to be adopted either by a State or at the policy-making level of a State-like organisation.

Back in Kenya, Justice Minister Mutula Kilonzo was quick to laud the ruling, saying that he “welcomed the decision.”

The ruling was equally received with excitement by the State-funded Kenya National Commission on Human Rights (KNCHR) and other non-governmental organisations.

“The ruling by ICC is a very important step towards justice for the victims of post election in Kenya,” Hassan Omar Hassan, vice chairman of the KNCHR said.

“It is a sign of good hope for us and we have been anticipating for it, it will go a long way in ending impunity in Kenya; what this means is that perpetrators of impunity will be published which is a very good sign from the ICC,” he said.

The Executive Director of the International Center for Policy and Conflict (ICPC) Ndung’u Wainaina said “the decision of the International Criminal Court on the Kenya situation is landmark in many respects. It proves that the Court remains a crucial credible, impartial and efficient judicial institution based on justice and law.”


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